Citation Nr: 0522289
Decision Date: 08/16/05 Archive Date: 08/25/05
DOCKET NO. 03-28 432 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for a heart disorder, to
include cardiomegaly.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Cooper, Counsel
INTRODUCTION
The veteran served on active duty from February 1962 to
February 1965.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2002 decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Columbia, South Carolina that, in pertinent part, denied
service connection for cardiomegaly, claimed as a heart
condition. A Board videoconference hearing was requested and
scheduled, but the veteran failed to report for such hearing.
The Board remanded the case in May 2005 for further
development, and the case was returned to the Board in June
2005.
FINDING OF FACT
There is no evidence of a clinical diagnosis associated with.
No continuing heart disability, including cardiomegaly has
been clinically established.
CONCLUSION OF LAW
A heart condition, to include cardiomegaly was not incurred
in or aggravated during active military service, no may
cardiovascular disease be presumed to have been incurred in
service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137,
5107 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307,
3.309, 3.326 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) was signed into law in
November 2000 and is codified at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West. 2002). Regulations
implementing the VCAA are codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326 (2003). The liberalizing provisions
of the VCAA and the implementing regulations are applicable
to the present appeal.
The Act and the implementing regulations essentially
eliminate the threshold requirement that a claimant submit
evidence of a well-grounded claim; they provide instead that
VA will assist a claimant in obtaining evidence necessary to
substantiate a claim unless there is no reasonable
possibility that such assistance would aid in substantiating
the claim. They also require VA to notify a claimant and the
claimant's representative, if any, of any information,
including any medical or lay evidence, not previously
provided to VA that is necessary to substantiate the claim.
As part of this notice, VA is to specifically inform the
claimant and the representative, if any, of which portion, if
any, of the necessary evidence must be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant. In addition, VA is required to notify
the claimant to submit any pertinent evidence in his
possession.
The Board also notes that the United States Court of Appeals
for Veterans Claims (Court) has held that the plain language
of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to
a claimant pursuant to the VCAA be provided "at the time"
that, or "immediately after," VA receives a complete or
substantially complete application for VA-administered
benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119
(2004). The Court further held that VA failed to demonstrate
that, "lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as
amended by the Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n
making the determinations under [section 7261(a)], the Court
shall . . . take due account of the rule of prejudicial
error")."Id. at 121.
With respect to the veteran's claim for service connection,
the record reflects that through correspondence in May 2002
and later in January 2004, the veteran was informed of the
evidence and information necessary to substantiate his claim,
the information required of him to enable VA to obtain
evidence in support of his claim, the assistance that VA
would provide to obtain evidence and information in support
of his claim, and the evidence that he should submit if he
did not desire VA to obtain such evidence on his behalf. VA
specifically informed the veteran that he should submit any
pertinent evidence in his possession.
After notice was provided, the veteran was provided ample
time to submit or identify pertinent evidence. The Board is
satisfied that VA has complied with the notification
requirements of the VCAA and the implementing regulations and
that any procedural errors in the timing of the notice and
the RO's consideration of the claim were insignificant and
non prejudicial to the veteran. See Quartuccio v. Principi,
16 Vet. App. 183 (2002); Pelegrini, supra; Bernard v. Brown,
4 Vet. App. 384 (1993).
The record also reflects that VA assisted the veteran by
obtaining available service medical records and post-service
treatment records. Neither the veteran nor his representative
has identified any available, outstanding evidence that could
be obtained to substantiate the claim. The Board is also
unaware of any such available evidence or information. In
this regard, it is noted that the veteran specifically noted
in writing that he had no additional evidence to submit in
connection with his claim for service connection for a heart
condition, to include cardiomegaly.
Accordingly, the Board will address the merits of the
veteran's claim.
Factual Background
A review of his service medical records reflects that a July
1963 chest X-ray study reflected some elevation of the apex
of the heart which could suggest right ventricular
enlargement. A cardiac series was suggested. A November
1963 service record noted a diagnosis of minimal cardiomegaly
of undetermined etiology. It was noted that the veteran was
fit for duty. A July 1964 chest X-ray study showed that the
unusual cardiac configuration remained and was non-specific
in character. The study was unchanged from films conducted
in 1963. The veteran was seen in July 1964 complaining of
pain in the left chest radiating down the upper inside of his
arm. It was noted that the veteran had a normal
electrocardiogram and chest X-ray. The diagnostic impression
was musculoskeletal pain. On service separation examination
in February 1965, the veteran's heart was clinically normal.
Chest X-ray study was normal.
On June 2002 VA general medical examination, the veteran
indicated that he was told that he had an enlarged heart.
The veteran reported that he experienced severe fatigue;
weakness; occasional night sweats; decreased vision; neck
pain and chest pain which occurred almost everyday.
Palpitations, heart fluttering, and claudication occurred
after walking about a mile. He also reported frequent
heartburn, indigestion, frequent diarrhea and joint pain. On
physical examination, the veteran's blood pressure reading
was 120/88. Examination of his cardiovascular system
reflected that he was tachycardic without murmurs, gallops or
rubs. No heaves were noted. No carotid bruits were noted.
His lungs were clear to auscultation, bilaterally. The
diagnostic assessment included chest pain; decreased vision;
chronic fatigue; and arthritis. The description of his chest
pain and the frequency of it was concerning for that of
cardiac origin. He had not been evaluated by a physician for
his symptoms and had no stress test in the past.
On VA examination in August 2002, the veteran related his
history of an enlarged heart finding in 1963 during active
service. It was noted that he received a cardiac work-up
with catheterization which reported that everything was
normal. All of the heart chambers were normal. The veteran
indicated that he had not seen a medical doctor since his
discharge from active duty. He was not taking any
medication. He said that he was able to walk 1 to 2 miles
without any problem. He stated that he sometimes felt dizzy.
On physical examination, his blood pressure was 120/80. His
pulse was 80. Examination of the lungs revealed that the
they were clear with vesicular breath sounds, no crepitation
or rhonchi. On examination of the heart, it was noted that
S1 and S2 were audible with no murmurs. All peripheral
pulses were present with no jugular venous distention (JVD)
or edema. A chest X-ray study revealed some increased
markings along the bronchovascular outflow tracts which would
be compatible with chronic bronchial inflammation. No
consolidation or pulmonary mass was shown. The heart and
mediastinum appeared normal for his age.
A December 2002 VA history and physical examination report
notes that the veteran had not seen a doctor in many years
and took no medication on a regular basis. The veteran
denied chest pain, palpitation, paroxysmal nocturnal dyspnea
(PND) or orthopnea. Physical examination of the heart
reflected S1, S2, with no murmur. Extremities showed no
edema or cyanosis.
An August 2003 VA medical report notes that the veteran was
seen for a follow-up examination. He had no complaints. The
veteran denied chest pain or shortness of breath. Physical
examination of his heart revealed that it was not enlarged by
percussion. No murmur or gallops were shown.
On VA examination in April 2004, the veteran indicated that
he had a cardiac cauterization in 1963 due to cardiomegaly
detected on chest X-ray study. It was noted that apparently
the heart catheterization was normal. The veteran reported
non-exertion related chest pain but was on no medications for
his heart. A echocardiogram showed an ejection fraction of
65 percent. On physical examination, his lungs were clear.
His heart had a regular rhythm without murmur or gallop. The
diagnose were alcohol abuse and anemia.
Legal Analysis
Service connection is granted for disability resulting from
disease or injury incurred or aggravated in active military
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection is not granted for disease incurred or
injury sustained in service, but for disability resulting
from disease or injury in service. Brammer v. Derwinski, 3
Vet. App. 223 (1992).
There are certain disorders which may be presumed to have
been incurred in service if they are manifested to a
compensable degree within 1 year after qualifying service.
Cardiovascular renal disease is such a disorder. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309.
To establish service connection, there must be evidence of a
current disability, and an etiologic relationship between a
current disability and events in service or an injury or
disease incurred in service. Rabideau v. Derwinski, 2 Vet.
App. 141, 143 (1992).
The requisite link between a current disability and military
service may be established, in the absence of medical
evidence that does so, by medical evidence that the veteran
incurred a chronic disorder in service and currently has the
same chronic disorder, or by medical evidence that links a
current disability to symptoms that began in service and
continued to the present. Savage v. Gober, 10 Vet. App. 488,
498 (1997); 38 C.F.R. § 3.303(b).
In this case, it is noted that there was finding of
cardiomegaly during active service, there was no evidence at
that time or currently of a chronic disability associated
with such findings. At that time such findings were revealed
in 1963, it was determined that the veteran was fit for
return to duty. Moreover, on service separation examination
no abnormalities of the heart or lungs were reported. A
chest X-ray conducted in connection with his separation
examination was normal. VA medical records, including VA
examinations conducted in 2002 and 2004 do not reflect a
clinical diagnosis associated with a chronic heart
abnormality, including cardiomegaly. Simply put, the
veteran's claim is not supported by a clinical diagnosis, and
without a current disability to which his claims can be
attributed; there is no basis to grant service connection.
The isolated findings in service, without a diagnosed or
identifiable underlying condition and without current,
chronic clinical findings related to such do not constitute a
disability for which service connection may be granted. The
Court has held that Congress specifically limited entitlement
to service connected benefits to cases where there is a
current disability. "In the absence of proof of a present
disability, there can be no valid claim." Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
Keeping in mind the requirements to establish service
connection, the Board finds that the claim must be denied.
The application of 38 C.F.R. § 3.303 has an explicit
condition that the veteran must have a current disability.
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992)
(establishing service connection requires finding a
relationship between a current disability and events in
service or an injury or disease incurred there). In this
case no heat disability is currently shown. Apparently any
cardiomegaly in service was a variant of normal as testing
then and now has not revealed cardiovascular impairment.
Complaints of chest pain have been noted, but are not shown
to be manifestations of any cardiovascular disorder.
Accordingly, because the claim of service connection for a
heart condition, to include cardiomegaly does not meet the
minimum statutory requirement (i.e., a current disability) it
is legally insufficient under 38 C.P.R. § 3.303 and must be
denied. Rabideau.
ORDER
Entitlement to service connection for a heart disorder, to
include cardiomegaly is denied.
____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs